Terry Spinolo Pty Limited v Waverley Council

[2006] NSWLEC 229

Land and Environment Court

of New South Wales

CITATION:	Terry Spinolo Pty Limited v Waverley Council [2006] NSWLEC 229
PARTIES:	APPLICANT: Terry Spinolo Pty Limited RESPONDENT: Waverley Council
FILE NUMBER(S):	11359 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Impact on the heritage significance of the park - Issue 1 Non-compliance with the aims and objectives of the LEP - Issue 3 Non-compliance with the controls of the DCP - Issue 4 Impact on the adjoining property to the north - Issue 7
LEGISLATION CITED:	Waverley Local Environmental Plan 1996, (WLEP) Waverley Development Control Plan No 2 - Dwelling-house and Dual Occupancy Development, (DCP2) Environmental Planning and Assessment Act 1979, ss 79C and 97
DATES OF HEARING:	27/04/2006 and 28/04/2006
DATE OF JUDGMENT:	05/05/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr J J Bingham, solicitor with Ms Z Baker, solicitor SOLICITORS: Deacons RESPONDENT: Mr S Patterson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

5 May 2006

11359 of 2005 - Terry Spinolo Pty Limited v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Waverley Council (the council) to refuse a development application to demolish the existing dwelling and to erect a new three-storey dwelling house with roof terrace at Lot 18, DP 659162, being No 37 Henry Street, Queens Park.

2 I visited the land in company with the parties on the morning of the first day of proceedings and local residents gave evidence.

3 I have concluded that that the application should fail for reason of its excessive height and bulk and a likely reduction in the amount of direct daylight received in the side windows of the adjoining semi-detached cottage to the north.

The land

4 The land is situated on the western side of Henry Street, abutting Queens Park to the south and west. The land is at the southern end of a row of residential allotments fronting Queens Park.

5 The land has a rectangular shape, with a northern side boundary of 33.53m, an eastern frontage to Henry Street of 8.18m, a southern boundary to Queens Park of 33.53m and a western rear boundary to Queens Park of 8.66m and a site area of 282.1m2. The land is slightly narrower than most of the other single dwelling lots in the street, [Note: Exhibit B, Drawing No LDH D0101 showing the existing street and tree locations].

6 The land slopes down around 5m over the building footprint from the Henry Street frontage at a level of 79m AHD to the top of the cliff at around 76m AHD and around 13m overall fall from the frontage to the rear at 66.00m AHD. The land sits atop a steep sandstone escarpment some 10m-15m high and there is a paved footpath linking with Queens Park at the base of the cliff on the subject land. The land also has a variable cross fall down from north to south of around half a metre.

7 Existing on the land is a single-storey Federation style bungalow with tiled gable roof. The dwelling abuts the southern side boundary with the park and has a setback of around 900mm to the northern boundary that provides pedestrian access to the rear yard. No off street parking is provided. Landscaping on the land includes three semi-mature trees within the front setback, one mature tree at the centre of the council's nature strip and one semi-mature tree - within the south western part of the rear yard.

8 Adjoining the land to the north is Nos 33-35 Henry Street, a pair of single-storey semi - detached dwellings with a hipped roof with the ridge at 86.3m AHD. These dwellings are set back 3.5m from Henry Street and No 35 Henry Street is set back 1m from the common side boundary with the subject land.

9 To the east of the subject land, on the opposite side of Henry Street, is a recently constructed two-storey detached dwelling and some older style attached and detached dwellings.

10 Henry Street is characterised by a mixture of dwelling types, including semi-detached dwellings, terraced-style dwellings and residential flats. From viewpoints in the street expansive views are to be had towards the west and northwest over Queens Park.

Relevant planning controls

Waverley Local Environmental Plan 1996, (WLEP)

11 Under the provisions of the WLEP the land is zoned Residential 2(b) and the proposal is permissible with consent.

12 The specific aims relating to housing and heritage conservation are stated in cl 3 of the WLEP. The zone objectives and land use table are found in cl 10 of the WLEP.

Waverley Development Control Plan No 2 - Dwelling-house and Dual Occupancy Development, (DCP2)
13 DCP2 Version 4, that came into effect on 1 May 2003 applies to the land under a savings provision.
14 Under Part 3 of DCP2 the building height objectives are:
(i) To minimise loss of views from other dwellings.
(ii) To minimise loss of privacy to other dwellings.
(iii) To maintain acceptable solar access to dwellings and adjoining open-space.
(iv) To minimise bulk-related impacts of dwelling house development.
(v) To ensure that visual impacts of scale of dwelling-house development are acceptable.

15 The building height is up to 9.5 metres with a maximum height of the external wall of up to 7.5m and attics may be included within the roof form where the council is satisfied that it will not add to the bulk of the building, [Note: Exhibit 3 p 15 Part 3].

16 The council also included an ‘important note to applicants’ that states:

Nothing in this Part should be read as restricting council’s ability to impose a condition of consent requiring the overall height of the building or an external wall of a building to be less than 9.5 metres or 7.5 metres, respectively. Council will exercise such discretion having regard to the following matters:

(a) impact of the proposed building on adjoining buildings by way of overshadowing, loss of light, impact on views or excessive bulk;
(b) the housing needs of the applicant generally;
(c) submissions made by the public; and
(d) the impact of the proposed building on the streetscape and its compatibility with the established character of the locality.

17 Under Part 4 of DCP2 the size and bulk of dwelling houses objectives are:

(i) To ensure that new dwelling houses and alterations and additions to existing dwelling houses are of an acceptable size and bulk in relation to the size and shape of the allotment.
(ii) To ensure there is no overdevelopment of dwelling house sites.
(iii) To ensure that any negative impacts on adjoining or nearby residents living in buildings on adjoining or nearby allotments are maintained and wherever possible eliminated.
(iv) To ensure that dwelling house development adds to and does not attract from the existing streetscape and character of the area.

18 In Figure 3 of DCP2 the floor space ratio (FSR) of a dwelling house on a site the size of the subject land is 0.79:1. The smaller the parcel of land the higher the allowable FSR.

19 Under Part 5 of DCP2 the objectives of the setback controls are:

(i) To ensure that the distance between buildings on adjacent properties allows adequate solar access, ventilation and privacy.
(ii) To permit flexibility in the siting of dwelling houses.
(iii) To ensure that the siting of dwelling houses is individual harmony with surrounding buildings and streetscape.

20 Various design solutions are included to meet these objectives, [Note: Exhibit 3 Part 5 pp 19-20].

21 Other relevant development control plans affecting the subject land are:

· Waverley Development Control Plan No 9 - Reducing Crime Through Design;

· Waverley Development Control Plan No 13 - Energy Smart Homes Policy;

· Waverley Development Control Plan No 14 - Land Use and Transport; and

· Waverley Development Control Plan No 19 - Waste Avoidance and Resource Recovery.

The proposal and its history

22 Development application No 820/04 was lodged with the respondent council on 9 December 2004 to demolish the existing dwelling and to erect a new three-storey dwelling house on the land.

23 The most recent amended plans, lodged with the council on 1 August 2005, proposed:

· On the lower ground floor level an internal wintergarden/landscaped area; two bedrooms with west facing terrace area connected by breezeway to laundry, bathroom, storage and plant room.

· On the ground floor level a single garage and storage area; master bedroom and associated bathroom and west-facing balcony.

· On the first floor level a living room and associated west-facing balcony connected to kitchen and dining area via breezeway with a balcony above the garage.

· Limit the extent of the roof garden to the western side only, with a stair room.

24 On 26 November 2004, a pre-DA meeting was held and the council officers raised several concerns that were considered by those officers to be fatal to the success of the application including various non-compliances with provisions contained within DCP2, including, bulk, scale, provision of extensive roof decks and the location of garaging. The development application was later lodged with the council on 9 December 2004.

25 Following a more detailed assessment by the council staff, the development application was deferred on 11 February 2005 for the following reasons:

1. Excessive Floor Space Ratio.

2. Excessive Height.

3. Requirement for Heritage Impact Statement.

4. Requirement for additional landscaping information.

26 The applicant lodged additional information and amended plans with the council on 24 March 2005. These amended plans were not re-notified as the modifications resulted in a reduction in environmental impacts, when compared by the council staff with the previously notified proposal.

27 An assessment report, based on the 24 March 2005 amended plans, was considered at the council's Development Control Committee (DCC) meeting on 24 May 2005, and the application was recommended for refusal:

1. The proposal is not an acceptable development in its Residential 2(b) zoning under Waverley Local Environmental Plan 1996, in regard to zoning objective (b) concerning local amenity and its impact on the heritage significance of the Queens Park Landscape Heritage Item.
2. The proposed development is considered contrary to Council's Development Control Plan (DCP) No.2 -Dwelling House Development in respect to the following provisions of the DCP:
(a) Objectives concerning Part 3 Building Height, in particular points (a) to (d) in respect to Council's discretion to apply its numerical height controls.
(b) The control and objectives concerning Part 4 Size and Bulk of Dwelling Houses, in particular the non-compliance with the floor space control is not supported in this instance or is the overall bulk of the proposed building.
(c) The control and objectives concerning Part 9 Vehicular Access and Parking, given the dominance of the proposed garage within the dwelling's Henry Street facade.
(d) The control and objectives concerning Part 15 in respect to the Queen Park Character Study given the excessive bulk of the building when viewed from Queens Park.
3. The proposal provides for a poor transition between the adjoining parkland and its urban fringe, given its excessive bulk and scale and "heavy" masonry detailing to rear balconies.
4. The proposal will create an unacceptable precedent within the existing residential area should approval be granted.
5. The proposal is not considered to be in the public interest.

28 However, the council as a whole, resolved to defer the application to a Councillor Inspection meeting, which was held on 4 June 2005. At this meeting the council resolved that:

29 The workshop was held on 9 June 2005 and consequently further amended plans were lodged with the council on 1 August 2005. These plans were notified.

30 The 1 August 2005 amended development application, was considered at Council's Development Control Committee (DCC) meeting on 27 September 2005 when it was recommended that the application be granted consent on a deferred commencement basis.

Notification

31 The 9 December 2004 original development application was notified to surrounding property owners and occupants for 14 days from the 4 January 2005 and the council received seven (7) submissions.

32 The 1 August 2005 amended plans were re-notified for 14 days from 2 August 2005, and the council received five (5) submissions. It is these plans that are before the Court for determination.

The council’s decision
33 By notice dated 19 October 2005, the council refused the application for the following reasons:
1. The proposal is not an acceptable development in its 2(b) residential zone under the Waverley Local Environment Plan 1996 in regard to zoning objective (b) concerning local amenity and impact on the heritage significance of the Queens Park Landscape Heritage Item.
2. The proposed development is considered contrary to Council's Development Control Plan (DCP) No 2 - Dwelling House Development in respect to the following provisions of the DCP:

(a) Objectives concerning Part 3 Building Height, in particular points (a) to (d) in respect to Council's discretion to apply its numerical height controls.
(b) The control and objectives concerning Part 4 Size and Bulk of Dwelling Houses, in particular the non-compliance of the floor space control is not supported in this instance nor is the overall bulk of the proposed building.
(c) The control and objectives concerning Part 9 Vehicular Access and Parking, given the dominance of the proposed garage within the dwelling's Henry Street façade.
(d) The control and objectives concerning Part 15 in respect to the Queens Park Character Study given the excessive bulk of the building when viewed from Queens Park.
3. The proposal provides for a poor transition between the adjoining parkland and its urban fringe, given its excessive bulk and scale and ‘heavy’ masonry detailing to rear balconies.
4. The proposal will create an unacceptable precedent within the existing residential area should approval be granted.
5. There is a lack of adequate demonstrated analysis including all physical site constraints such as a geotechnical assessment of the rock shelf strength and overhang to support excavation activities and new construction.
6. There is a lack of geotechnical engineering assessment of ground conditions to support existing adjacent properties.
7. There is no assessment of the excavation risks to the rock face, to the overhanging rock, to the cave, which may have Indigenous cultural value, and to adjacent properties.
8. There is no indication of the excavation methodology to protect the landforms.
9. There is no hydrogeological study to determine the ground water characteristics and potential for damage.
10. The proposal is not considered to be in the public interest.
11. Inadequate analysis of environmental impacts of this proposal which shares a common boundary with Queens Park heritage item, including building construction and permanent impacts on amenity and character of Queens Park, and on archaeological and heritage significance of the sandstone cliff line. Requirements include:
(a) Geotechnical assessment of the rock shelf strength and overhang to support excavation activities and new construction.
(b) Geotechnical engineering assessment of ground conditions to support existing adjacent properties.
(c) Excavation risks to the rock face, to the overhanging rock and to adjacent properties.
(d) Excavation and construction methodology to protect the landforms.
(e) Hydrogeological studies to determine ground water characteristics and methods to protect sub-grade environment.
12. Inadequate natural and built landscape analysis and demonstrated contribution of proposed development to Queens Park heritage item and cliff line both inside and outside the property boundary:
(a) Landform analysis of adjacent surrounding parklands and characteristic architectural response to this landform.
(b) Assessment of direct eastward view up towards the site from Queens Park.
(c) Built form analysis of locality, including character and scale of existing house and its relationship with the parklands.
13. Failure to address Indigenous heritage and European heritage issues.
14. There has been a great deal of community consultation and meetings with the applicant and despite that we have still not come up with a satisfactory outcome, and we do not feel that all the requests that have been made have been addressed.
15. The proposal includes a roof terrace and roof structure, which does not comply with Council's planning instruments, particularly DCP 2 and Character Study. T
16. The proposal has adverse privacy impacts on neighbouring properties and view loss for residents to the east.
17. There is no setback to the southern boundary without meritorious basis.
18. The Darug people and the La Perouse Local Aboriginal Land Council were not involved in consultations contrary to a decision of Council.

34 The appeal was filed on 17 November 2005.

35 Ms A Bock, Director, Strategic Planning and Projects, Centennial Parklands Trust, gave evidence on site along with local residents including:

· Judge K O’Connor, and Mrs B O’Connor, residents of No 33 Henry Street, Waverley;

· Mr N Godhard, resident of No 30 Henry Street, Waverley;

· Mrs Tanner, resident of No 32 Henry Street, Waverley;

· Mrs M Armstrong, resident of No 35 Henry Street, Waverley;

· Mrs Godhard, resident of No 30 Henry Street, Waverley;

· Mr D Gray, resident of No 24 Henry Street, Waverley and on behalf of Nos 26-28 Henry Street, Waverley; and

· Mrs J Grey, resident of No 26 Henry Street, Waverley.

36 Mr G A Shiels, was the Court-appointed town-planning expert.

37 Mr R Staas, was the Court-appointed heritage expert.

38 Ms G Nalder, Senior Development Assessment Officer of Waverley Council prepared the statement of basic facts.

The issues

39 On 11 January 2006 the council filed a statement of issues.

Heritage

Particulars

Indigenous Heritage

Specific aims and zoning

Particulars

Development Control Plan (DCP) No.2 -Dwelling House and Dual Occupancy Development

Particulars

· its excessive bulk and scale; and

· heavy masonry detailing to the rear balconies when viewed from Queens Park.

Geotechnical

Particulars

Hydrology

Particulars

Public Interest

7. The proposed development should not be approved, as it is not in the public interest and given the matters set out in submissions received by Council.

40 The salient issues were:

· Impact on the heritage significance of the park - Issue 1:

· Non-compliance with the aims and objectives of WLEP - Issue 3

· Non-compliance with the controls of the DCP2 - Issue 4

· Impact on the adjoining property to the north - Issue 7

The evidence and findings

41 If one disregards the balustrade around the roof, the planter boxes and the solar chimney roof, the proposal would exceed by over 2m the required maximum wall height. It would also exceed by around 25% the floor space ratio allowable for land of this size in the Residential 2(b) zone. However, the applicant argues that if one were to disregard that much of the gross floor area below ground line the proposal would almost comply with the FSR controls.

Impact on the heritage significance of Queens Park - Issue 1

42 It is the height and bulk of the proposal that would cause adverse impacts in terms of amenity and dominate Queens Park.

43 Ms Bock said that the visual dominance of the proposal would be reduced, and many of her concerns would be addressed, were the controls of DCP2 met. I accept her evidence.

44 Nearby residents were also concerned that the height and bulk of the proposal would adversely impact on the park. I have taken these comments into account with the evidence of Mr Staas, the Court-appointed heritage expert, who had prepared two reports in Exhibit 6 and 7 and was favourably disposed to the application.

45 There was no dispute between the parties that Queens Park, Darley Street, Bondi Junction, is listed as item No L28, under the heritage items Schedule 5 – of the WLEP under the category of ‘landscape item and site’.

46 Under cl 49 of the WLEP, the council and the Court on appeal,

…must take into consideration the likely effect of the proposed development on the heritage significance of heritage item, heritage conservation, archaeological site or potential archaeological site and on its setting in determining an application for carrying out development on land in its vicinity.

47 The proposal would be development within the vicinity of the listed Queens Park and cl 49 applies. Development in its vicinity forms part of the setting of the park and that includes the urban fabric in the adjoining residential zone. I am satisfied that the visual impact of the proposal, would be inappropriate as part of the setting for Queens Park. This is made all the more significant as the land on which it is proposal would be erected is bounded on two sides by the park and would be in an elevated position above parts of the park to the west of the land.

48 I am satisfied that the proposal, would breach the maximum external wall height of 7.5m on the northern and southern elevations by amounts varying from nil to 1.6m and nil to 2.2m respectively and the western elevation that presents to Queens Park would breach by varying amounts the wall height control from 1.6m to over 2m. Mr Shiels graphically depicted these breaches of the wall height control by the red-hatched areas on the plans, [Note: Exhibit H, drawing Nos LHAD3101/04 and LHDA3102/04]. As seen from Queens Park, from the west and southwest, the bulk of the proposal would be greater than that expected of a complying building, and not appropriate within the vicinity of this heritage item.

49 In coming to this conclusion I have taken into account the evidence of Mr Staas that, [Note: Exhibit 6, p 8 para 7.6].

…the development is acceptable in this location and that despite the prominence of the site, it will not have a significant adverse impact on the identified heritage values of the parkland or on any other streetscape or heritage values in the immediate context.

50 Mr Staas was satisfied that the proposal would be well designed, and would form an appropriate backdrop to this urban park. However, I cannot see in Mr Staas’ statement any consideration of the breach of the maximum wall height of DCP2 and he seems to have accepted that the height and bulk of the proposal would be satisfactory having regard to the council officer’s recommendation for approval. He also places reliance on the positive evaluation by Ms A Roach, who used Heritage Office guidelines to assess the present application, [Note: Exhibit 6, p 6 para 6.4]. He was also content that the bulk of the proposal would be broken up by modulation of the facades.

51 The Court is required to balance all the various factors and the breach of the wall height control weighs heavily. I disagree with Mr Staas’ conclusions, and I am satisfied that the designer of proposal has not adequately responded to the context.

52 I agree with the council’s view that the proposal would adversely affect the heritage significance of Queens Park and would be contrary to cll 3(6)(d) and 49 of the WLEP. As a result, I refuse the application for this reason.

53 I have also assumed that Queens Park is zoned differently to the residential land that surrounds it.

54 Under cl 32 of WLEP:

In granting consent to the carrying out of development on land adjoining land in another zone, the council must have regard to the objectives of the adjoining zone and the measures to reduce the adverse impact on the development of land within the adjoining zone.

55 The proposal would also fail to reduce adverse impacts on the park.

Non-compliance with the aims and objectives of the LEP - Issue 3

56 The council was concerned that the proposal would not comply with the specific aims and the objectives of the Residential 2(b) zoning in cl 3 of the WLEP. The council was concerned that the proposal would adversely impact on the amenity of nearby occupants of dwellings.

57 The semi-detached dwelling in which Mrs Ambrose resides at No 35 Henry Street, Queens Park, obtains daylight through five windows that face onto the subject land. I consider the proposal would be in breach of cl 3(7)(f) of the WLEP as it would not improve the residential amenity of the area. Also, I am satisfied that the proposal would not consistent with the Residential 2(b) zone objectives contained in cl 10 of the WLEP for reason that it would not maintain and improve the amenity and existing characteristics of the locality in accordance with the zone objectives.

Non-compliance with the controls of the DCP - Issue 4

58 The council was concerned that the proposal would not be consistent with cl 3 of DCP2 with regard to the breach of the maximum wall height. It would also exceed the overall building height. As a result of these breaches the council concluded tat there would be unreasonable view loss to neighbouring properties to the east.

59 On the site inspection, I observed that if the proposal were erected all the distant view to the horizon would be lost from the upstairs rooms of the dwellings to the east. However, I satisfied myself that if the proposal were setback from the street alignment a similar distance to other dwellings on the western side of Henry Street, and conformed to the wall and overall building height of DCP2, it might be expected that glimpses of the land below the horizon might be obtained from dwellings to the east. These views are important to the occupants of these dwellings during the day and perhaps especially at night and should not be cut off by development that exceeds the DCP2 controls. I refuse the present application for reason of inadequate view sharing and consequent loss of amenity.

60 I am satisfied that the proposal has been designed to limit over viewing of nearby properties. I would not refuse the application for reason of unreasonable privacy loss to neighbouring properties to the east.

61 The maximum floor space ratio (FSR) is 0.79:1. I accept the council’s submission that as the FSR of the proposal would be 1.07:1 the requirement would be breached and the proposal would not comply with cl 4 of DCP2 with regard to size and bulk. The fact that some of the gross floor area is underground needs to be taken into account however, I accept the council’s submission that this breach when combined with the breach of the height controls would result in an over-development of the site and in an unacceptable bulk and scale when viewed from Queens Park.

62 The fact that the proposal is in breach of cl 5 of DCP 2 with regard to setbacks on the south side with Queens Park was not pressed with any vigour at the hearing however, I am satisfied the proximity of the proposal to the park, together with its height and bulk, would exacerbate its visual impact and render it inappropriate in its context. Its dominance is clearly apparent from the model in Exhibit E and the perspective views in Exhibit B, drawing No LHAD9501/04.

63 Despite the amendments to the plans to limit the extent of the trafficable area on the roof, nearby residents were concerned that noise would be transmitted from this area to neighbouring properties to the north and the east. The council stated that the proposal would not comply with cl 8 of DCP 2 with regard to privacy and noise as a result. I am satisfied that if the proposal were to be designed to respect the planning controls of the council, it is likely that any deck at roof level would be contained within the roof form and be even more limited in area than proposed and shielded by roof material and any sound would be attenuated to a greater extent than as proposed.

64 The architectural plans were amended prior to the hearing to reduce the visual impact of the garage doors as they present to the street. As proposed the garage door would be limited in width to 2.4m and I am satisfied would not dominate the front of the dwelling when viewed from Henry Street.

65 Also under Issue 4, the council was concerned that the proposal would not comply with cl 15.3 of DCP 2 and having regard to the Residential Character Study for Queens Park, the proposal would be of excessive bulk when viewed from Queens Park. I agree, and I am also satisfied that there would be a poor transition between the adjoining parkland and the proposal on its urban fringe. The factors that contribute to this are the proposal’s excessive bulk and scale; the dominance of the rear balconies and the flat roofed form.

Impact on the adjoining property to the north - Issue 7

66 Mrs Armstrong the neighbour to the north, was concerned that the proposal would, if constructed, reduce the amount of daylight received in the south facing windows of her dwelling at No 35 Henry Street. She pointed out that her dwelling has a south/southwest aspect and the front room is the only room with daylight received through an east-facing window. She said that as her dwelling is semi-detached light obtained through the side windows should not be unreasonably diminished.

67 I am satisfied that her concerns with regard to direct daylight are well founded. The permissible wall height for dwellings in the Residential 2(a) zone is 7.5m and the proposal would have a wall height in excess of 9.5m in part. An exercise was carried out to determine the extent of the breach opposite the centreline of each of the five windows in Mrs Armstrong’s dwelling. Considering the rooms starting from the front: opposite Bedroom 2 the breach of the wall height would be 600mm; at the lounge room the breach would be 800mm; at the bedroom 3/study the breach would be 1.2m and at the kitchen/ sunroom the breach would be 2m. There would also be a breach opposite the fifth window, which is a bathroom.

68 Mr Shiels agreed that if one were to construct a cross-section through the side passage at every side window of No 35 Henry Street, part of the dome of the sky would be occluded by the breach in the wall height and thus there would be a likely to reduce the direct daylight obtained at that window.

69 In submissions Mr Bingham suggested that sunlight would be reflected from the proposed wall and into Mrs Armstrong’s windows. This would be the case, and would contribute to the amount of daylight received, however, direct daylight from the dome of the sky is also a benefit that should not be denied to Mrs Armstrong in the present circumstances.

70 Mr Justice O’Connor who had lived at No 35 Henry Street, for around 8 years prior to occupying No 33 Henry Street attested to the large amount of daylight enjoyed within No 35 Henry Street.

71 I refuse the development application for reason of its breach of the wall height and contrary to the aims of DCP2 there would be an adverse impact on the adjoining building by way of loss of direct daylight, [Note: Exhibit 3, p 15, Part 3, DCP2].

Other matters

72 Mrs Armstrong was also concerned to protect the privacy of her west facing deck and to avoid any overbearing impact of the proposal. She said that she “…can’t see why it is not complying.” If the proposal were to comply, I am satisfied that these impacts would be reduced.

73 I am satisfied that the form of the solar chimney would be inappropriate in the context of Queens Park and the nearby residential area. An outcome of the wall height and overall height controls in DCP2 are that pitched roofs are encouraged and many of the older buildings in Henry Street do have pitched roofs. Part of the applicant’s case was that as the land is at the end of the row of dwellings on the western side of Henry Street that the different form would be a ‘book end’. If the height controls were respected a form more sympathetic to the other buildings in the street would result. The solar chimney might then be integrated as part of the design of a pitched roof and be less prominent and as a result more neighbourly. This would be desirable.

74 For the above reasons, the appeal is dismissed.

Costs

75 As there were no submissions made in respect of costs, I have made no orders in this regard.

Orders
76 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 820/04 lodged with the respondent council on 9 December 2004 to demolish the existing dwelling and to erect a new three-storey dwelling house with roof terrace at Lot 18, DP 659162, being No 37 Henry Street, Queens Park, is refused consent.

3. The exhibits except for Exhibits A, B and 10 are returned.

S J Watts

Commissioner of the Court

sw